HALSEY v. COMMISSIONER OF SOCIAL SECURITY
Filing
12
OPINION fld. Signed by Judge Claire C. Cecchi on 10/25/16. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DEBORAH L. HALSEY,
Civil Action No.: 2:15-cv-631 1 (CCC)
Plaintiff,
V.
OPINION
COMMISSIONER Of SOCIAL SECURITY,
Defendant.
CECCHI, District Judge.
I.
INTRODUCTION
Before the Court is Plaintiff Deborah L. Halsey’s (“Plaintiff’) appeal seeking review of a
final determination by the Commissioner of the Social Security Administration (“Commissioner”)
denying her application for disability insurance benefits (“DIB”) and supplemental security
income (“SSI”) under
§ 216(i),
223(d), and 1614(a)(3)(A) of the Social Security Act (“$SA”).
The issue to be decided is whether the Commissioner’s denial of benefits is supported by
substantial evidence. F or the reasons set forth below, the decision of the Administrative Law
Judge (“AU”) is affirmed in part, vacated in part, and the matter is remanded for further
proceedings consistent with this Opinion.
II.
BACKGROUND
A.
Procedural Background
Plaintiff applied for disability insurance benefits and supplemental security income on
November 26, 2012, alleging disability as of February 28, 2010. (Tr.’ at 27). The application was
denied initially in December 2013, and upon reconsideration in April 2013. (Id.) On May 20,
2014, a hearing was held before AU Kimberly L. $chiro. (Id.) AU Schiro issued a decision on
August 20, 2014 finding Plaintiff was not disabled, as defined by the $SA. (Id. at 35 (citing 20
C.F.R.
§ 404.1520(f) and 416.920(f))).
Plaintiff requested review of the decision and the Appeals
Council denied the request on November 20, 2014. (Tr. at 1). On August 20, 2015, Plaintiff
instituted this action. (ECF No. 1).
B.
Factual Background
Plaintiff was born on April 26, 1957. (Id. at 20). She has a college degree and a Certified
Nurse Assistant (“CNA”) license. (j4 at 45-47). Plaintiff testified she lives with her teenage
granddaughter whom she drives to and from school every day. (Id. at 45, 50-5 1). Plaintiff reported
she makes meals for herself and her granddaughter, does laundry, goes food shopping, cleans
around the house, and reads as a hobby. (Defendant’s Brief Pursuant to Local Civil Rule 9.1 (“Def.
Br.”) ECF No. 10, at 3). Plaintiff indicated she uses a cane when she uses public transportation,
although one of her treating physicians indicated in 2012 and 2013 Plaintiff was able to walk at a
reasonable pace without the use of a hand-held assistive device. (Tr. at 49-50, 369, 389).
Plaintiff was employed with Essex County College from 1990 to 2006 as a clerk typist,
which she testified she left because “it was time to move on and [she] wanted to work with
children.” (Tr. at 53-54). Plaintiff was employed as a teacher’s aide at a charter school from April
“Tr.” refers to the certified record of the administrative proceedings. (ECF No. 6).
2
2006 to July 2006, and as a receptionist with a temp agency from January 2007 until she was laid
off in February 2010. (Id. at 216, 173). Plaintiff attended full time courses from November 2011
to April 2012 and obtained her CNA license. (j at 47). Plaintiff worked on a per diem basis as
a CNA from June 2012 to August 2012. (Id. at 45, 216).
Plaintiff sought treatment with Dr. Charles Granatir on June 22, 2009 for a low back injury
incurred after she lifted a box at work on May 14, 2009. (Id. at 274). At this time, Plaintiffreported
low back injuries from a bus accident in 1989 and a motor vehicle accident in 2005. (j4) Dr.
Granatir indicated Plaintiff had hypertension and was using Valium as medication. (Id. at 274,
279, 284). Dr. Granatir recommended physical therapy and Plaintiff underwent treatment for one
month. (Id. at 274, 276, 279, 284). On July 28, 2009, Dr. Granatir indicated Plaintiffs “[p]ain
has completely resolved,” and she was able to “return to full work duty” on July 29, 2009.
(I4 at
284, 288).
Plaintiff was seen five times by Dr. I. Ahmad for a spinal sprain from August 2010 until
March 2012. (Id. at 298). In January 2011, Plaintiff underwent an MRI of her lumbar spine which
showed mild bilateral facet joint hypertrophy, most prominent at L4/5, resulting in minimal L4
anterolisthesis, but without spinal canal or foraminal stenosis. (Id. at 296-97). A lumbar spine x
ray in August 2012 showed posterior facet arthropathy. (Id. at 395). An x-ray of Plaintiffs right
shoulder in March 2012 indicated mild degenerative changes, with no evidence of acute fracture
or dislocation. (Id. at 299).
In January 2012, Dr. Sandhya Shah noted Plaintiffs primary problems were unspecified
essential hypertension, asthma unspecified, spinal stenosis of lumbar region, and morbid obesity.
(RI. at 308). Dr. Shah also noted Plaintiff had diabetes mellitus type two without complication,
and that her hypertension was well-controlled. (Id. at 310). Plaintiff visited Dr. Shah again in
3
february 2012 with left shoulder pain and backache, and was diagnosed with osteoarthritis.
(Id.
at 3 12-14). In March through June 2012, Plaintiff reported she was feeling well, but still had pain
in her back and legs, and was trying to lose weight with diet and exercise. (Id. at 320, 324, 330).
Plaintiff made a series of emergency room (“ER”) visits in 2012 and 2013. On June 9,
2012, Plaintiff presented with dizziness and was released when this symptom was resolved. (RI.
at 336-37). In late June 2012, Plaintiff went to the ER for shortness of breath and was diagnosed
with community acquired pnemonia. (Id. at 339-43). Plaintiff went to the ER in October 2012 for
chronic low back pain and chest pain. (Id. at 346). Plaintiff testified she visited the ER in October
2012 after her back locked up while she was sitting and she could not move. (j at 48-49). In
January 2013, Plaintiff went to the ER for joint pain. (Id. at 37 1-72).
Plaintiff was seen in December 2012 by Dr. Gloria Nwankwo, who indicated Plaintiff had
a decreased range of motion in her hips bilaterally, cervical spine extension and lumbar spine, and
positive straight leg raises in both supine and sitting. (RI. at 33). Dr. Nwankwo completed a second
report in April 2013 in which her findings were unchanged. (Id.)
III.
LEGAL STANDARD
A.
Standard of Review
This Court has jurisdiction to review the Commissioner’s decision under 42 U.s.c.
§ 405(g) and 1383(c)(3). The Court is not “permitted to re-weigh the evidence or impose [itsj
own factual determinations,” but must give deference to the administrative findings, chandler v.
conun’r of Soc. Sec., 667 F.3d 356, 359 (3d dr. 2011); see also 42 u.s.c. § 405(g).
the
Nevertheless,
court must “scrutinize the record as a whole to determine whether the conclusions reached are
rational” and supported by substantial evidence. Gober v. Matthews, 574 F.2d 772, 776 (3d
cir.
1978) (citations omitted). Substantial evidence is more than a mere scintilla, and is “such relevant
4
evidence as a reasonable mind might accept as adequate to support a conclusion.” Chandler, 667
F.3d at 359 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the factual record is
adequately developed, substantial evidence “may be ‘something less than the weight of the
evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being supported by substantial evidence.”
Daniels v. Astrue, No. 4:08-1676, 2009 WL 1011587, at *2 (M.D. Pa. Apr. 15, 2009) (quoting
Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966)). In other words, under this deferential
standard of review, the Court may not set aside the AU’s decision merely because it would have
come to a different conclusion. Cmz v. Comm’r of Soc. Sec., 244 F. App’x 475, 479 (3d Cir.
2007) (citing Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)).
Determining Disability
B.
Pursuant to the SSA, in order to be eligible for benefits, a plaintiff must show he is disabled
by demonstrating an inability to “engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than twelve months.”
42 U.S.C.
§
423(d)(1)(A), 13$2c(a)(3)(A). Taking into account the plaintiffs age, education,
and work experience, disability will be evaluated by the plaintiffs ability to engage in his previous
work or any other form of substantial gainful activity existing in the national economy. 42 U.S.C.
§ 423(d)(2)(A),
1382c(a)(3)(B). A person is disabled for these purposes only if his physical or
mental impairments are “of such severity that he is not only unable to do his previous work, but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.
..
.“
42 U.S.C.
§
1382c(a)(3)(B).
Decisions regarding disability will be made individually and will be “based on evidence
5
adduced at a hearing.” Sykes v. Apfel, 22$ f.3d 259, 262 (3d Cir. 2000) (citing Heckler v.
Campbell, 461 U.S. 45$, 467 (1983)). Congress has established the type of evidence necessary to
prove the existence of a disabling impairment by defining a physical or mental impairment as “an
impairment that results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.
§ 423(d)(3),
C.
13$2(a)(3)(D).
Sequential Evaluation Process
The Social Security Administration follows a five-step, sequential evaluation to determine
whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R.
§ 404.1520, 416.920.
First, the AU must determine whether the plaintiff is currently engaged in gainful activity. Sykes,
22$ F.3d at 262. Second, if he is not, the AU determines whether the Plaintiff has an impairment
that limits his ability to work. Id. Third, if he has such an impairment, the AU considers the
medical evidence to determine whether the impairment is listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (the “Listings”). If it is, this results in a presumption of disability. j4. If the
impairment is not in the Listings, the AU must determine how much residual functional capacity
(“RFC”) the applicant retains in spite of his impairment. Id. at 263. Fourth, the AU must consider
whether the plaintiffs RFC is enough to perform his past relevant work. j Fifth, if his RFC is
not enough, the AU must determine whether there is other work in the national economy the
plaintiff can perform. j
The evaluation continues through each step unless it is determined at any point the plaintiff
is or is not disabled. 20 C.F.R.
§ 404.1520(a)(4), 416.920(a)(4).
The plaintiff bears the burden
of proof at steps one, two, and four, upon which the burden shifts to the Commissioner at step five.
Sykes, 228 F.3d at 263. Neither party bears the burden at step three.
6
at 263 n.2.
adduced at a hearing.” Sykes v. Apfel, 22$ f.3d 259, 262 (3d Cir. 2000) (citing Heckler v.
Campbell, 461 U.S. 458, 467 (1983)). Congress has established the type of evidence necessary to
prove the existence of a disabling impairment by defining a physical or mental impairment as “an
impairment that results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.
§ 423(d)(3),
C.
13$2(a)(3)(D).
Sequential Evaluation Process
The Social Security Administration follows a five-step, sequential evaluation to determine
whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R.
§ 404.1520, 416.920.
First, the ALl must determine whether the plaintiff is currently engaged in gainful activity. Sykes,
22$ F.3d at 262. Second, if he is not, the AU determines whether the Plaintiff has an impairment
that limits his ability to work. çj Third, if he has such an impairment, the AU considers the
medical evidence to determine whether the impairment is listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (the “Listings”). If it is, this results in a presumption of disability.
If the
impairment is not in the Listings, the ALl must determine how much residual functional capacity
(“RFC”) the applicant retains in spite of his impairment. Id. at 263. Fourth, the ALl must consider
whether the plaintiffs RFC is enough to perform his past relevant work. Id. Fifth, if his RFC is
not enough, the AU must determine whether there is other work in the national economy the
plaintiff can perform. j
The evaluation continues through each step unless it is determined at any point the plaintiff
is or is not disabled. 20 C.F.R.
§
404.1520(a)(4), 416.920(a)(4). The plaintiff bears the burden
of proof at steps one, two, and four, upon which the burden shifts to the Commissioner at step five.
Sykes, 228 F.3d at 263. Neither party bears the burden at step three. j at 263 n.2.
6
IV.
DISCUSSION
A.
Summary of the AU’s Findings
At step one, the AU found Plaintiff met the insured status requirements of the SSA and
had not engaged in substantial gainful work activity since the onset date of the alleged disability.
(Tr. at 29). Although Plaintiff had engaged in some work in 2012, the AU determined this work
did not rise to the level of “substantial gainful activity.” (j) At steps two and three, the AU
found Plaintiffs impairments of osteoarthritis, hypertension, asthma and obesity were “severe,”
but not severe enough to meet, either individually or in combination, any of the impairments listed
in 20 C.F.R.
§ 4014,
Subpart P, Appendix 1. (Id. at 30-3 1).
The AU concluded Plaintiff had the residual functional capacity (“RFC”) to perform
sedentary work as defined in 20 C.F.R.
§
404.1567(a) and 416.967(a), with the exceptions that
Plaintiff “cannot have concentrated exposure to fumes, odors, dusts, gases and poor ventilation.”
(Id. at 31). Additionally, the AU found Plaintiff “can occasionally climb, balance, kneel, stoop,
crouch and crawl.” (Id.)
To reach this conclusion, the ALl considered all of Plaintiffs symptoms and their
consistency with the evidence.
Specifically, the AU considered Plaintiffs reports that her
impairments affected her ability to lift, walk, climb stairs, squat, sit, bend, kneel, stand and
complete tasks, and that occasionally her lower back locks up and she cannot move. (j at 31).
In addition, the AU considered both Plaintiffs reports that she needed to use a cane for support
around the house and when walking to the store, and her treating physician’s report that Plaintiff
did not use a hand-held assistive device and she could walk at a reasonable pace and ambulate
freely. (Id. at 32).
The ALl considered Plaintiff had a history of chronic back pain, for which she made prior
7
visits to the emergency room, where her pain was relieved with medication. (Id.) Additionally,
one of Plaintiffs treating physicians, Dr. Shah, consistently reported Plaintiffs review of systems
and physical examinations resulted in normal findings, normal range of motion of all joints, and
normal strength of all muscle groups and that her hypertension was well-controlled.
(Ii) The
AU noted Plaintiffs emergency room visits for shortness of breath and took her asthma into
consideration. (Id. at 33).
The AU found Plaintiffs statements of intensity, persistence and limiting effects of her
impairments were not entirely credible, noting Plaintiffs return to school full-time after the alleged
onset date undermined her credibility.
(Id.) However, the AU did give some credence to
Plaintiffs complaints and found her RFC limited Plaintiff to sedentary work, rather than light
exertional work, as recommended by the state agency physicians. (RI. at 34).
At step four, the AU found Plaintiff capable of performing past relevant work as a clerk
typist, performed by Plaintiff from 1990 through 2006, which requires work at the sedentary
exertional level. (Id.)
B.
Analysis
Plaintiff makes the following arguments in support of her contention that the AU’s
decision should be remanded: (1) the ALl’s determination that Plaintiff did not meet an Appendix
I Listing was not supported by substantial evidence as the AU did not consider the combined
effects of obesity with Plaintiffs other impairments, (2) the RFC analysis was conclusory and was
not supported by medical evidence, and (3) the ALl’s conclusion at step four was not supported
by substantial evidence because she misinterpreted the responses to the hypothetical question by
the vocational expert (“yE”). The Court will address each argument in turn.
8
1.
The AU’s Assessment of Plaintiffs Obesity was Insufficient
Plaintiff asserts this Court should remand due to the AU’s failure to evaluate Plaintiffs
obesity in accordance with Social Security Ruling (“SSR”) O2-Olp, 2002 SSR LEXIS 1 (Sept. 12,
2002).
(Plaintiffs Memorandum of Law (“P1. M.”) ECF No. 9, at 10). The Third Circuit
addressed this issue in Diaz v. Commissioner of Social Security, where the AU found obesity was
a severe impairment at step two, but failed to assess the impact of obesity on the claimant’s other
impairments at step three.
577 f.3d 500, 503 (3d Cir. 2009).
The Diaz court noted the
Commissioner’s modification to the Appendix I Listing regarding obesity in 2000 served to replace
“the automatic designation of obesity” based on height and weight with an “individualized
inquiry.” Id. This inquiry is meant to focus on “the combined effect of obesity and other severe
impairments.” Id. The court determined “an ALl must meaningfully consider the effect of a
claimant’s obesity, individually and in combination with her impairments, on her workplace
function at step three and at every subsequent step.” Id. at 504. In assessing the impact of
claimant’s obesity, the AU must discuss the evidence and explain her reasoning in a manner that
would be “sufficient to enable meaningful judicial review.” Id.
In this case, the ALl identified Plaintiffs obesity as one of Plaintiffs severe impairments
at step two. (Tr. at 29). The AU recognized she was required to consider Plaintiffs obesity in
combination with her other impairments at step three, but merely explained the possible adverse
impact obesity may have on co-existing impairments in general. (Id. at 30). Prior to her RFC
analysis, the AU stated, “[i]n accordance with SSR 02-Olp, I have taken obesity and it’s [sic]
limiting restrictions into consideration with the assignment of the [RFC].” (Id. at 31). Yet, the
RFC analysis does not discuss whether Plaintiffs obesity has an adverse effect on her work
function.
(14: at 3 2-34).
9
mandates that an AU meaningfully consider Plaintiffs obesity. 577 f.3d at 504. “A
blanket statement that an AU has considered evidence is not the same thing as an AU actually
discussing the evidence.” Moore v. Comm’r of Soc. Sec., No. 2:11—05369, 2013 WU 94155$, at
*4 (D.N.J. Mar. 8, 2013). Here, the AU set forth a conclusory statement regarding Plaintiffs
obesity, but failed to discuss how Plaintiffs obesity affected her other impairments.
Defendant argues the Court should rely upon Rutherford v. Bamhart, where the Third
Circuit held remand is unwarranted, even if an AU fails to mention obesity, if a plaintiff fails to
specify how her weight impaired her ability to work, particularly when the AU has relied on
physicians who were aware of the plaintiffs weight and height. 399 f.3d 546, 553 (3d Cir. 2005)
(Gov. Br. at 16). In Rutherford, the plaintiff did not identify obesity as an impairment and had
“not specified how that factor would affect the five-step analysis undertaken by the AU, beyond
[a] generalized” impact. 399 F.3d at 553. The Court concluded, “[b]ecause her doctors must
also be viewed as aware of Rutherford’s obvious obesity, we find that the AU’s adoption of their
conclusions constitutes a satisfactory if indirect consideration of that condition.” Rutherford, 399
F.3d at 553.
In Diaz, “by contrast, [Plaintiff] asserted
—
and the AU specifically determined
—
that
[Plaintiffs] obesity constituted a severe impairment.” 577 f.3d at 504. The court concluded,
“where [Plaintiffs] obesity was urged, and acknowledged by the AU, as a severe impairment that
was required to be considered alone and in combination with her impairments at step three,” and
“absent analysis of the cumulative impact of [Plaintiffs] obesity and other impairments on her
functional capabilities, we are at a loss in our reviewing function.” Id.
Here, although Plaintiff did not assert obesity as an impairment in her Disability Report,
she did provide medical evidence which indicated her weight “worsens her back pain.” (Tr. at 233,
10
386) (when asked to list “physical or mental conditions that limit your ability to work,” identifying
arthritis and lower back pain, high blood pressure, and bronchial asthma). Moreover, as in Diaz,
the ALl acknowledged Plaintiff’s obesity as a severe impairment as step two. (RI. at 29). Thus,
the AU was required to consider Plaintiffs obesity alone and in combination with her impairments
at step three and at every subsequent step. See
577 F.3d at 504. Here, the AU did not
adequately address Plaintiffs obesity, and the Court cannot provide meaningful review of this
issue. The Court remands for the AU to consider the effects of Plaintiff’s obesity in combination
with her other impairments.
2.
The AU Sufficiently Supported The RFC Analysis
Plaintiff asserts an RFC permitting Plaintiff to perform sedentary work is not supported by
substantial evidence as the AU’s determination is “merely conclusory and is not supported by the
medical evidence.” (Pt. M. 14, 15).
The Third Circuit in Burnett v. Commissioner of Social Security found the AU’s step three
analysis amounted to a “conclusory statement.
.
.
beyond meaningful judicial review.” 220 f.3d
112, 119 (3d Cir. 2000). The statement the court found to be conclusory was: “Although [Burnett]
has established that she suffers from a severe musculoskeletal [impairment], said impairment failed
to equal the level of severity of any disabling condition contained in Appendix I, Subpart P of
Social Security Regulations No. 4.” j “Burnett does not require the AU to use particular
language or adhere to a particular format in conducting his analysis. Rather the function of Burnett
is to ensure that there is sufficient development of the record and explanation of findings to permit
meaningful review.” Jones v. Barnhart, 364 f.3d 501, 505 (3d Cir. 2004). Unlike the AU in
Burnett, AU Schiro considered and discussed all of the medical evidence and testimony in the
record for four pages in her RFC analysis. (Tr. 31-34). Therefore, the RFC analysis is not
11
conclusory.
Second, Plaintiff asserts the ALl’s reliance upon Dr. Simpkins’s and Dr. Nicastro’s reports
was improper because these doctors “relied on Dr. Granitir’s report made in 2009” and Plaintiffs
alleged onset date was in February 2010. (P1. M. 14). It is undisputed that Plaintiff bears the
burden of providing evidence that she did not have the RFC to perform any substantial gainful
activity as of her alleged onset date. $ç 20 C.F.R.
§
404.1545(a)(3) (“In general, you are
responsible for providing the evidence we will use to make a finding about your residual functional
capacity.”); Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007) (“The claimant bears
the ultimate burden of establishing steps one through four.”) (citing Ramirez v. Bamhart, 372 F.3d
546, 550 (3d Cir. 2004)). With the evidence provided, the ALl must determine whether Plaintiff
suffers from an underlying “medically determinable impairment that could reasonably be expected
to produce [Plaintiffs] symptoms.” 20 C.F.R.
§ 404.1529(b), 4 16.929(b).
Here, Plaintiff had the burden to produce medical records which showed she was unable to
perform any substantial gainful activity as of the alleged onset date in February 2010. The medical
records Plaintiff provided which chronologically followed Dr. Granatir’s from 2009 were Dr.
Ahmad’ s from August 2010. (Tr. 31-34). Plaintiff provided no intervening records to document
a change in her health as of the alleged onset date in February 2010. Because Dr. Granatir’s records
were the last medical records provided before Plaintiffs alleged onset date, the ALl properly relied
upon these records in consideration of Plaintiffs health as of February 2010.
Next, Plaintiff argues the ALl failed to consider all of the medical evidence regarding
Plaintiffs inability to sit for a prolonged period of time. (P1. M. 16). This argument is without
merit. In her opinion, the AU discussed Dr. Nwankwo’s findings which reported in December
2012 Plaintiff “had a decreased range of motion in her hips bilaterally, cervical spine extension
12
and lumbar spine, and the claimant had positive straight leg raises in both supine and sitting.” (Tr.
33). The AU contrasted this evidence with Plaintiffs testimony that she went to school full time
from November 2011 through April 2012 and worked on a per diem basis through August 2012,
in addition to reports by Dr. Simpkins and Dr. Nicastro who opined that Plaintiff was capable of
handling light exertional work. (Tr. 33-34).
“In evaluating medical reports, the ALl is free to choose the medical opinion of one doctor
over that of another.” Diaz, 577 f.3d at 505 (citing Cotter v. Harris, 642 F.2d 700, 705 (3d Cir.
1981)). “When a conflict in the evidence exists, the ALl may choose whom to credit but cannot
reject evidence for no reason or for the wrong reason. The AU must consider all the evidence and
give some reason for discounting the evidence she rejects.” Plummet v. Apfel, 186 f.3d 422, 429
(3d Cir. 1999) (internal citation omitted). Here, the AU considered all of the medical evidence
and provided an explanation for why she chose to credit the opinions of Dr. Simpkins and Dr.
Nicastro over Dr. Nwankwo’s. (Tr. at 3 3-34) (“Dr. Nwankwo indicated that she could not provide,
based on her medical findings, an opinion regarding the claimant’s ability to do work related
activities.
.
.
.
I give greatest weight to the State Agency medical consultants
.
.
.
[T]he
.
consultants’ assessments are consistent with the medical evidence of the claimant’s treating
sources.”). Accordingly, the Court finds the AU’s consideration of the medical evidence to be
supported by substantial evidence.
Next, Plaintiff asserts the AU improperly discredited Plaintiffs statements pursuant to
SSR 96-7, which provides Plaintiffs “statements.
.
.
may not be disregarded solely because they
are not substantiated by objective medical evidence.” (P1. M. 11, P1. R. 2 (citing S$R 96-7, 1996
SSR Lexis 4, at *2 (July 2, 1996))).
The ALl must “evaluat[e] the intensity and persistence of [Plaintiffs] symptoms
13
.
.
.
and
determin[e] the extent to which [those] symptoms limit [Plaintiffs] capacity for work.” 20 C.F.R.
§
404.1529(c), 416.929(c). Although “serious consideration” must be given to a plaintiffs
statements about her symptoms, Welch v. Heckler, 808 F.2d 264, 270 (3d Cir. 1986), “[a]llegations
of pain and other subjective symptoms must be supported by objective medical evidence.”
Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999) (citing 20 C.F.R.
§
404.1529). Such an
inquiry necessarily requires that the AU determine “the extent to which a claimant is accurately
stating the degree of pain or the extent to which he or she is disabled by it.” Id. (citing 20 C.F.R.
§ 404.1529(c)).
In making such credibility determinations, the AU is given great discretion, and
his findings are entitled to judicial deference. See generally Holley v. Comm’r of Soc. Sec., 590
F. App’x 167, 169 (3d Cir. 2014) (noting that an AU’s credibility determinations regarding
claimant’s statements are entitled to deference);
Metz v. Fed. Mine Safety & Health
Review Comm’n, 532 F. App’x 309, 312 (3d Cir. 2013) (“Overturning an AU’s credibility
determination is an ‘extraordinary step,’ as credibility determinations are entitled to a great deal
of deference.”).
In this case, the AU
determined Plaintiffs “statements concerning the intensity,
persistence and limiting effects of [her] symptoms are not entirely credible.” (Tr. at 18). The AU
explained, Plaintiff “returned to school after her alleged onset date to obtain her license as a
[CNA],” she attended a full-time course, worked from June 2012 through August 2012, and
“stopped working in August 2012 because she injured her back while lifting a patient.” (j at 33).
The AU concluded Plaintiffs “return to school and performance of these work activities through
August 2012 undermines her claims of disability.” (Id.)
Plaintiff argues the AU “should not have discredited [P]laintiffs complaints” because
Plaintiffs part-time work does not “rise to the level of substantial gainful activity and
14
[] therefore,
[is] not a basis for a finding of not disabled.” (Plaintiffs Letter Pursuant to Local Rule 9.1 ECF
No. 7). However, “work done during the alleged disability period may show that the plaintiff can
work at substantial gainful activity,” even if the work did not rise to that level at the time. Schade
v. Colvin, 2014 LEXIS 10585, at *19..20 (W.D. Pa. Jan 29, 2014) (citing 20 C.F.R.
§
404.1571
(regarding work performed after the alleged onset date: “Even if the work you have done was not
substantial gainful activity, it may show that you are able to do more than you actually did”));
Russo v. Astrue, 421 F. App’x 184, 189 (3d Cir. 2011) (finding it notable Plaintiff continued
working after alleged onset date even though that work did not reach the level of substantial gainful
activity).
Therefore, the Court finds the AU’ s determination of Plaintiffs credibility was
supported by substantial evidence and affirms this finding.
Lastly, Plaintiff contends the AU failed to provide a function-to-function analysis as
required by SSR 96-8p, 1996 $$R LEXIS 5, at *2 (July 2, 1996). (P1. M. 15). SSR 96-8p requires
a discussion of the “functions in paragraphs (b) [physical abilities], (c) [mental abilities,] and (d)
[other abilities affected by impairments] of 20 C.F.R.
§
404.1545 and 416.945.” 1996 $$R
LEXIS 5, at *2. In this case, the ALl based her decision upon the state agency medical consultants
and Plaintiffs subjective complaints. (Tr. at 33-34). See Neal v. Comm’r of Soc. Sec., 57 F.
App’x 976, 979-980 (3d Cir. 2003) (“The findings of fact made by state agency medical
consultants must be treated as expert opinion evidence of nonexamining sources at the AU and
Appeals Council levels of administrative review.”) (citing SSR 96-6, 1996 SSR LEXIS 3 (July 2,
1996)). The AU provided a function-to-function assessment, finding that the medical consultants
found Plaintiff could occasionally lift, carry and pull 20 pounds; frequently lift, carry and pull 10
pounds; stand and walk for six hours; sit for six hours; and push and pull without limitation, except
as indicated for her abilities to lift and carry. The medical consultants on which the AU relied
15
based their opinions on Dr. Granatir’s records from 2009. (Tr. 34). See j, 57 F. App’x at 980.
(“A state agency medical assessment is given weight only when it is supported by the evidence.”).
Although Plaintiff did not provide contrary medical evidence regarding her impairments at the
time of the alleged onset date, the ALl also explained that she gave weight to Plaintiffs subjective
complaints in her assessment, and found Plaintiffs RFC was limited to sedentary work. (Tr. at
34). The Court finds the AU’s RFC assessment complied with S$R 96-8p and was supported by
substantial evidence.
The AU’s Step Four Finding Was Supported By Substantial
3.
Evidence
Plaintiff argues the ALl’s conclusion at step four was not supported by substantial evidence
because she did not accurately portray Plaintiffs impairments to the yE.
The AU in this case solicited the testimony of a VE to make a disability determination.
(Id. at 34).
A hypothetical question posed to a VE must “accurately portray the claimant’s
impairments” and “the expert must be given an opportunity to evaluate those impairments as
contained in the record.” Rutherford, 399 F.3d at 554. The Third Circuit has explained the
impairments the expert must evaluate are only those credibly established in the medical record and
not all the impairments the claimant alleges to have.
The Third Circuit “do[es] not require an
ALl to submit to the vocational expert every impairment alleged by a claimant.”
Ich
The hypothetical posed to the VE corresponded with the AU’s RFC and accurately
portrayed Plaintiffs impairments. Although the AU asked the VE a second hypothetical question
regarding an individual who may have trouble sitting for extended periods of time, the AU
sufficiently explained why she did not find Plaintiffs complaints regarding this impairment to be
entirely credible in her RFC assessment.
The Court finds the AU properly submitted the
impairments that were supported by the record to the yE.
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V.
CONCLUSION
For the foregoing reasons, the Court will affirm in part and vacate in part the AU’s decision
and remands this case for further administrative proceedings consistent with this Opinion. An
appropriate order accompanies this Opinion.
DATED:
ZS ,2016
CLAIRE C. CECCHI, U.S.D.J.
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